HomeMy WebLinkAbout07-605 PUNDTA. Leonard Pundt
7324 Montour Street
Philadelphia, PA 19111 -3608
Dear Mr. Pundt:
ADVICE OF COUNSEL
December 31, 2007
07 -605
This responds to your faxed transmission received November 15, 2007, by which
you requested advice from the State Ethics Commission.
Issue: Whether as a Management Analyst 2 with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a
"public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and
upon leaving Commonwealth employment, the restrictions of Section 1103(g) of the
Ethics Act pertaining to former public officials /public employees.
Facts: Since you began service with the Commonwealth of Pennsylvania in
October 2000, you have been employed by PennDOT as a Management Analyst 2 in
Engineering District 6 -0 ( "District 6 -0'). You have submitted a copy of your position
description, which is incorporated herein by reference. A copy of the job classification
specifications for your position (job code 01020) has also been obtained and is
incorporated herein by reference.
Per your official PennDOT position description, you serve as the Quality
Improvement Coordinator for District 6 -0. Your duties and responsibilities include the
following:
• Improving the efficiency and effectiveness of PennDOT's core business
(maintenance and construction projects) by, inter alia, facilitating team meetings,
conducting research, determining benchmarks, serving on communication
committees and teams, participating in internal audits, and assisting with problem
resolution following an audit;
• Identifying benefits from ideas and promoting them statewide through, inter alia,
meeting with individuals and teams in the counties and assisting with or
performing benefit /cost analysis;
• Functioning as co- coordinator of the District Business Plan by gathering data,
conducting analysis, and developing charts;
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December 31, 2007
Page 2
• Recommending and implementing new initiatives, and reorganizing and
redesigning existing functions to eliminate unproductive, inefficient or redundant
operations;
• Serving as a member of the District's Strategic Management Committee ( "SMC ")
and performing the activities to fulfill the requirements identified for members of
the SMC in the District's Strategic Environmental Management Program
( "SEMP ") Manual for Sound Environmental Practices;
• Fulfilling environmental management requirements in environmental training
programs;
• Implementing the SEMP business plan objectives;
• Completing SEMP stockpile "QA's" as directed;
• Coordinating the administration of the Customer Care Center Program in District
6 -0; and
• Participating in program formulations with ADE for Services.
Position description, at 1 -2.
You state that the audits referenced in the job duties listed above are not "typical"
audits but rather are a type of quality assurance evaluation ( "QA ") performed on
PennDOT County Maintenance District stockpiles. As the SEMP Coordinator, you
arrange for, monitor, and sometimes participate in the quality assurance evaluations in
support of the District 6 -0 SEMP.
Per the job classification specifications under job code 01020, a Management
Analyst 2:
• Provides journey -level technical analysis work and makes recommendations in
areas such as work methods and procedures, organizational structures,
administrative issuances, forms, or space and facilities;
• Interviews employees and supervisors in operational or program units, conducts
on -site inspections, and negotiates for approval of recommendations;
• Evaluates work methods and procedures, organizational structures, or inventory
systems in order to improve productivity, suggests further or initial automation, or
suggests changes in agency policy, procedures, or management practices;
• Evaluates requests for office equipment or space and facility utilization in order to
improve productivity, suggest initial /further automation, or suggest change in
space or facility use;
• Reviews and analyzes administrative issuances, develops or revises directives or
manual issuances and determines their effect on departmental policies, priorities,
or procedures, and coordinates internal or external review, printing, and
distribution;
• Conducts studies of managerial functions, obtains and analyzes facts about
departmental procedures and practices, and develops conclusions and
recommendations for improvements;
Pundt, 07 -605
December 31, 2007
Page 3
• Leads other management analysts in studies, makes work assignments and sets
priorities, monitors progress, and synthesizes study findings into a
comprehensive report;
• Gives technical advice to departmental staff, commercial vendors, or others; and
• Provides for and assists in the training of personnel, and prepares and revises
procedural manuals and other instructional materials.
Job classification specifications, at 1 -2.
You state that the position of Management Analyst 2 is a full -time, non -
supervisory, permanent civil service position. You further state that as a Management
Analyst 2, you do not set policy or provide advice with regard to the award of contracts
to consultants or contractors. You also state that you are not required to file Statements
of Financial Interests.
You are considering leaving state employment and accepting a full -time position
with McCormick Taylor, an engineering and environmental consulting firm that provides
services to PennDOT, the Pennsylvania Turnpike Commission, local municipalities,
other states, and private companies. You state that your job responsibilities with
McCormick Taylor might include assisting PennDOT organizations (bureaus,
engineering districts, and the like) with their Continuity of Operations ( "COOP ")
programs, including providing training and managing exercises of such organizations'
COOP programs. You state that you might also provide public involvement and
communication support for various PennDOT projects for which McCormick Taylor has
been retained as an independent contractor or consultant.
You pose the following two questions:
1. Whether, as a Management Analyst 2 with PennDOT, you would be
considered a "public employee" subject to the Ethics Act; and
2. Whether and to what extent the restrictions of the Ethics Act would be
applicable to you.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
It is further initially noted that, pursuant to Sections 1107(10) and (11) of the
Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), an opinion /advice may be given only as to
prospective (future) conduct. If the activity in question has already occurred, the
Commission may not issue an opinion /advice, but any person may then submit a signed
and sworn complaint, which will be investigated by the Commission if there are
allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the
extent you have inquired as to conduct that has already occurred, such past conduct
may not be addressed in the context of an advisory opinion. However, to the extent you
have inquired as to future conduct, your inquiry may and shall be addressed.
Pundt, 07 -605
December 31, 2007
Page 4
In responding to your inquiries, the threshold question to be addressed is
whether, as a Management Analyst 2 with PennDOT, you would be considered a "public
employee" subject to the Ethics Act.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5)
any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa. C. S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
Pundt, 07 -605
December 31, 2007
Page 5
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
Pundt, 07 -605
December 31, 2007
Page 6
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Ministerial action." An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
of the persons own judgment as to the desirability of the
action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania has specifically considered and approved the Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Phillips, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1 ( "public employee" (ii)), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision - makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is
that, in your capacity as a Management Analyst 2 for PennDOT, you would be
considered a "public employee" subject to the Ethics Act. See, Valunas, Advice 91 -546.
In your capacity as a Management Analyst 2, you have the ability to take or
recommend official action with respect to subparagraph (5) within the definition of
"public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the
following duties set forth in the position description and job classification specifications
would be sufficient to establish status as a "public employee" subject to the Ethics Act:
Pundt, 07 -605
December 31, 2007
Page 7
• Coordinating the administration of the Customer Care Center Program in District
6 -0;
• Improving the efficiency and effectiveness of PennDOT's core business
(maintenance and construction projects) by, inter alia, determining benchmarks,
participating in internal audits, and assisting with problem resolution following an
audit;
• Identifying benefits from ideas and promoting them statewide through, inter alia,
meeting with individuals and teams in the counties and assisting with or
performing benefit /cost analysis;
• Functioning as co- coordinator of the District Business Plan;
• Serving and performing duties as a member of the District's Strategic
Management Committee ( "SMC ");
• Implementing the SEMP business plan objectives;
• Completing SEMP stockpile quality assurance evaluations;
• Participating in program formulations with ADE for Services;
• Recommending and implementing new initiatives, and reorganizing and
redesigning existing functions to eliminate unproductive, inefficient or redundant
operations;
• Evaluating work methods and procedures, organizational structures, or inventory
systems in order to improve productivity, suggesting further or initial automation,
or suggesting change in agency policy, procedures, or management practices;
• Evaluating requests for office equipment or space and facility utilization in order
to improve productivity, suggesting initial /further automation, or suggesting
change in space or facility use; and
• Developing or revising directives.
The foregoing activities would also meet the criteria for determining your status
as a public employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii).
Turning to your second inquiry, you are advised that as a public employee, you
would currently be subject to the requirements, restrictions, and prohibitions of the
Ethics Act applicable to public employees as set forth in Section 1103 of the Ethics Act,
65 Pa.C.S. § 1103 (pertaining to restricted activities), and Sections 1104 and 1105 of
the Ethics Act, 65 Pa.C.S. §§ 1104, 1105 (pertaining to the requirements for filing
Statements of Financial Interests).
You would also be subject to the following provisions of the Ethics Act that apply
to everyone: Sections 1103(b) and 1103(c), 65 Pa.C.S. §§ 1103(b), (c) (providing in part
that no person shall offer or give to a public official /public employee anything of
monetary value and no public official /public employee shall solicit or accept anything of
monetary value based upon the understanding that the vote, official action, or judgment
of the public official /public employee would be influenced thereby); Section 1108(k), 65
Pa.C.S. § 1108(k) (governing the confidentiality of information relating to a complaint,
preliminary inquiry, investigation, hearing, or petition for reconsideration that is before
Pundt, 07 -605
December 31, 2007
Page 8
the State Ethics Commission); and Section 1110, 65 Pa.C.S. § 1110 (pertaining to
wrongful use of the Ethics Act).
You are further advised that upon termination of your employment with
PennDOT, you would become a "former public employee" subject to the restrictions of
Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). Although you have not posed
a specific inquiry with respect to the post - employment restrictions of Section 1103(g),
the submitted facts provide that you are considering terminating your employment with
PennDOT to accept a position with a private firm that provides services to PennDOT.
Therefore, in order to provide a complete response to your second inquiry, this advisory
shall set forth the restrictions of Section 1103(g) of the Ethics Act and address the
applicability of Section 1103(g) to your proposed private employment scenario.
Upon termination of employment with PennDOT, you would become a "former
public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) of the Ethics Act does not prohibit a former public
official /public employee from accepting a position of employment, it does restrict the
former public official /public employee with regard to "representing" a "person" before
the governmental body with which he has been associated ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
65 Pa.C.S. § 1102.
§ 1102. Definitions
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
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December 31, 2007
Page 9
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public employee himself, Confidential
Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official /employee; (4) participating in any matters before the former
governmental body as to acting on behalf of a person; and (5) lobbying. Popovich,
Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public official/
public employee on invoices submitted by his new employer to the former governmental
body, even though the invoices pertain to a contract that existed prior to termination of
public service, Shay, Opinion 91 -012. However, if such a pre - existing contract does not
involve the unit where the former public employee worked, the name of the former
public employee may appear on routine invoices if required by the regulations of the
agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former ublic
official /public employee may not be identified on documents submitted to the former
governmental body. The former public official /public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for the new employer.
Section 1103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official /employee had influence or control but
extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at
290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be deemed to have been
associated upon termination of public service would be PennDOT in its entirety
including, but not limited to, District 6 -0. Therefore, for the first year following
termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would
apply and restrict "representation" of "persons" before PennDOT.
In applying Section 1103(g) of the Ethics Act to your proposed employment
scenario, you are advised as follows.
Section 1103(g) of the Ethics Act would not prohibit you from accepting a position
with McCormick Taylor. However, during the first year following termination of your
employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from
Pundt, 07 -605
December 31, 2007
Page 10
performing any job duties as a McCormick Taylor employee that would involve
prohibited representation before PennDOT as set forth above.
For example, you are advised that Section 1103(g) of the Ethics Act would
restrict you from assisting PennDOT organizations with their COOP programs and
providing public involvement and communication support for various PennDOT projects
for which McCormick Taylor has been retained as an independent contractor or
consultant where engaging in such activity(ies) would involve prohibited representation
before PennDOT.
Although Section 1103(g) of the Ethics Act would only apply to restrict you from
engaging in prohibited "representation" before PennDOT, you are advised that to the
extent your prospective private employer would provide services to the Pennsylvania
Turnpike Commission, local municipalities, other states, and private companies that
would have involvement with PennDOT, you would have to exercise caution to ensure
that you would not engage in prohibited representation before PennDOT with respect to
such services, such as, for example, through the prohibited inclusion of your name on
documents submitted to PennDOT.
Based upon the facts that have been submitted, the latter portion of this Advice
has addressed the applicability of Section 1103(g) only. It is expressly assumed that
there has been no use of authority of office for a private pecuniary benefit as prohibited
by Section 1103(a) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: As a Management Analyst 2 for the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a
"public emplo ee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §
1101 et seq. "Ethics Act "). As a public employee, you would currently be subject to the
requirements, restrictions, and prohibitions of the Ethics Act applicable to public
employees as set forth in the Sections 1103, 1104, and 1105 of the Ethics Act. You
would also be subject to Sections 1103(b), 1103 (c), 1108(k), and 1110 of the Ethics
Act, which are applicable to everyone. Upon termination of service with PennDOT, you
would become a ' former public employee" subject to Section 1103(g) of the Ethics Act.
The former governmental body would be PennDOT in its entirety, including but not
limited to Engineering District 6 -0. Section 1103(g) of the Ethics Act would restrict you
from engaging in any activity that would constitute prohibited representation before
PennDOT for one year following termination of Commonwealth employment. The
restrictions as to representation outlined above must be followed. The propriety of the
proposed conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after termination of service.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Pundt, 07 -605
December 31, 2007
Page 11
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717 - 787 - 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel